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According to the Pew Research Center, in 2011, cell phone owners between the ages of 18 and 24 exchanged an average of 50 text messages per day and about 1,500 text messages per month. Even though a majority of the population doesn't fall into this extreme category, these statistics are evidence that people are changing the way they communicate with each other. For in-house legal teams and attorneys, this trend means much more than changing how you contact your kids to come home for dinner.

Text messages represent a new category of potentially relevant evidence, which must be accounted for and, in most cases, preserved during e-discovery. In Regas Christou v. Beatport, LLC (D. Colo. January 23, 2013), the court sanctioned the defendant for taking “no steps to preserve the text messages," leading to a spoliation sanction.

In this case, the plaintiff, Regas Christou, a Denver nightclub owner, filed a lawsuit against a competing nightclub owner, Brad Roulier, and others for multiple claims including violation of the Sherman Act for threats which would lead to the monopolization ofonline electronic dance music sales. On December 1, 2010, the defendant sent out a legal hold to key employees, directing them to preserve all potentially relevant data, including cell phone text messages. In May 2011, in response to the plaintiff's first discovery requests, the defendant did not disclose any text messages. Three months later, it was reported that Mr. Roulier, the principal defendant, lost his iPhone and all the text messages saved on it.

Subsequently, the plaintiff motioned for spoliation sanctions due to the loss of Mr. Roulier's text messages. Based on Mr. Roulier's testimony, the defendant argued that no relevant text messages existed on Mr. Roulier's iPhone. The court found the defendant's argument unpersuasive, stating “although defendants state that defendants 'found no responsive text messages,' they do not indicate that defense counsel reviewed Mr. Roluier's text messages and determined that they contained nothing of relevance." A two part test was used by the court to decide whether spoliation sanctions were appropriate:

(1) Did the party have a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and

(2) Was the adverse party prejudiced by the destruction of the evidence?

The court deemed that the defendant failed in their duty to preserve, stating “Those text messages, few as they might have been, should have been preserved and either provided to the plaintiff or potentially made the subject of further proceedings before the court." The court, however, had no basis to assume that the spoliation was nothing more than negligence, so it chose not to grant an adverse inference instruction. Instead, the court allowed the plaintiff “to introduce evidence at trial, if they wish, of the litigation hold letter and defendant's failure to preserve Mr. Roulier's text messages" and argue an adverse inference to the jury.

THE E-DISCOVERY BEAT'S TAKE

Add text messages to the long list of electronically stored information (ESI) that must be identified, searched, collected, reviewed and, if relevant, produced during e-discovery. Besides this, Regas Christou provides three key lessons:

(1) Duty to Preserve Potentially Relevant ESI: A common mistake is to think the duty to preserve evidence during e-discovery only extends to relevant ESI. Wrong. Potentially relevant ESI must be preserved when the preservation trigger is pulled. The defendant in Regas Christou did not have any record that any of Mr. Roulier's text messages were preserved, collected or analyzed. On top of that, none of Mr. Roulier's text messages were collected, meaning that when Mr. Roulier lost his iPhone all his text messages were gone. As a result, the court ruled that the defendant spoliated evidence, stating, “A commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents."

Remember, preserve all potentially relevant ESI. Preserve by collecting or preserve by locking away the data source in question, but whatever way you do it, make sure to preserve it.

(2) Documentation: Throughout e-discovery, legal teams should document all actions/decisions and the reasoning behind those actions/decisions. Even if the defendant in Regas Christou had reviewed all of Mr. Roulier's text messages for relevancy, without a record, they would've never have been able to prove it. Tens to hundreds to even thousands of e-discovery decisions may be made during a single case. Trying to record all this information manually is incredibly tedious and often leads to the process being skipped altogether.

Look for software tools that come equipped with an audit log, which allow legal teams to automate the recording process and easily produce reports that can prove a reasonable, defensible process was utilized.

(2) Software Integration / Mobile Collection: Mobile data is discoverable, we know that now. The real question becomes: how to efficiently search and collect this ESI in a defensible manner? In-house legal departments must have access to software that enables them to easily collect and then analyze mobile data. Accomplishing this requires: (1) A collection tool that can defensibly collect mobile data and (2) Integrating that collection tool with your e-discovery software so the mobile data can be easily ingested, searched and analyzed.

Text messages are here to stay. They aren't a fad like suspenders or skinny jeans. As the survey results show, young adults are sending close to 50 text messages per day, meaning that this new generation about to enter the workforce will have a lot more discoverable data to identify, search, collect and review. In-house legal departments need to take notice. At some point, every organization is going to have to address this mobile data conundrum. It's better to establish a process now rather than being faced with a pending e-discovery sanction later.

To learn more about other up and coming e-discovery trends, read Exterro's recently published article in CMS Wire, "E-Discovery Trends for 2013" here.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.

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About the Author

Mike Hamilton, J.D. serves as Exterro's Demand Generation & Partner Marketing Manager. With a legal and business background, Mike is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.